Another Obama Recess Appointment Smacked Down

Today, the U.S. Court of Appeals for the Third Circuit vacated a decision of the National Labor Relations Board (NLRB) on the basis that board member Craig Becker had been appointed in violation of the Constitution.

In a 2–1 decision, Judge D. Brooks Smith determined that Becker’s appointment on March 27, 2010, while the Senate adjourned for two weeks, violated the Recess Appointments Clause of the Constitution because it was not between sessions of Congress.

The court considered the operation of the Appointments Clause and the Recess Appointments Clause, the duration of recess appointments, and references to “adjournments” elsewhere in the Constitution in finding that a recess appointment is valid only when made during a break between sessions of the Senate.

The Third Circuit is the second appellate court to strike down President Obama’s recess appointments. In January, the D.C. Circuit struck down three other purported recess appointments to the NLRB in Canning v. NLRB, defining “recess” as “the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable.”

In the Third Circuit case, the NLRB argued that a recess “occurs any time members of the Senate do not have a duty to attend, the Senate chamber is empty, and the Senate is unavailable to receive communications from the president.” The court flatly rejected this definition, stating that under this rationale, “the president could…simply wait…until senators go home for the evening” to make recess appointments.

The Third Circuit considered the fact that the Constitution refers to both adjournment and recess evidence that “recess must mean something narrower than any break that follows an adjournment.” The problem with defining “recess” to include intrasession breaks (breaks within a session of at least 10 days) is that “nothing in the Constitution establishes the necessary length” of an intrasession break aside from the Adjournments Clause. The Adjournments Clause, which states that the Senate and House must concur on any adjournment longer than three days, cannot be “read into the Recess Appointments Clause.” It “provides a measure of what constitutes a de minimis break”—which cannot be what the Founders intended by “the Recess.”

As Alexander Hamilton described in Federalist 67, the Recess Appointments Clause is “nothing more than a supplement…for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.”

Further, the Recess Appointments Clause specifies that the term of a recess-appointee “shall expire at the End of [the Senate’s] next Session,” which the Third Circuit stated “implies that their appointments were made during a period between sessions.” If “recess” was meant to include intrasession recesses, then the Recess Appointments Clause supplants the Appointments Clause as the primary method of appointments because the Senate’s return from intrasession breaks would have “no immediate effect on [any] recess appointment” made during that break, since it would not expire until the next session.

As Heritage scholars Ed Meese and Todd Gaziano warned shortly after President Obama made four purported “recess” appointments in January 2012, his actions have weakened the office of the Presidency—especially now that two federal appellate courts have broadly ruled that even intrasession recess appointments (not to mention recess appointments made while the Senate is, in fact, in session) violate the Constitution. The Third Circuit decision today further deflates the Obama Administration’s claim that Canning was simply “one case, one company, one court.” The government has petitioned the Supreme Court to review the Canning decision, so this will likely not be the last word on the Recess Appointments Clause.

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Elizabeth Slattery writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Read her research.

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